supreme court order and special leave petition

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO. OF 2011

(Arising out of the final order and judgment dated 11.7.2011 passed by the Honble High Court of Gujarat at Ahmedabad, in Criminal Misc. Applciation No. 1692 of 2011; final judgement and order dated 3.12.2010 passed by the Additional Sessions Judge, Court No. 5, Ahmedabad and final judgement and order dated 10.1.2011 in Inquiry No. 2 of 2011 passed by the Metropolitan Magistrate at Ahmedabad)

IN THE MATTER OF:

Citizens for Justice and Peace and Anr. PETITIONERS

VERSUS

State of Gujarat & Ors. RESPONDENTS

PAPER BOOK

Along With

Crl. M.P. No of 2011: An Application for permission to file SLP

Crl. M.P. No of 2011: An Application for stay

Crl. M.P. No of 2011: An Application for exemption from appointment of an official translator

(For Detailed Index: Kindly See Inside)

ADVOCATE FOR THE PETITIONERS: APARNA BHAT

INDEX

SL.NO. PARTICULARS PAGE NOS. 1. Limitation Report A 2. Listing Proforma A1 - A-3 3. Synopsis and List Of Dates B - 4. i. True copy of the the final order and

judgment dated 11.7.2011 passed by the Honble High Court of Gujarat at Ahmedabad, in Criminal Misc. Applciation No. 1692 of 2011 ii. True copy of the final judgement and order dated 3.12.2010 passed by the Additional Sessions Judge, Court No. 5, Ahmedabad iii. True translated copy of the final judgement and order dated 10.1.2011 in Inquiry No. 2 of 2011 passed by the Metropolitan Magistrate at Ahmedabad

5. Special Leave Petition along with affidavit 6. Annexure P-1

A true copy of the application under section 311 of the Cr.P.C. dated 28.10.2010

SYNOPSIS AND LIST OF DATES

The present petition is being filed against the final judgment and

order dated 11.7.2011 passed by the Honble High Court of Gujarat at

Ahmedabad, in Special Criminal Application No. 378 of 2010, the final

judgement and order dated 3.12.2010 passed by the Additional Sessions

Judge, Court No. 5, Ahmedabad and the final judgement and order dated

10.1.2011 in Inquiry No. 2 of 2011 passed by the Metropolitan Magistrate

at Ahmedabad. By the said judgements and orders, a process of the

malicious campaign of people with vested interest to obstruct and impede

the work of the petitioner no.1 organisation and the petitioner no. 2 in

helping the victims of communal riots in the State of Gujarat has gained

judicial sanction.

That the Petitioner no. 1 organization was set up after the carnage

in Gujarat to provide assistance to the victims. In the process, the

Secretary of the Petitioner organization, Petitioner no. 2 had occasion to

interact with various witnesses who were narrating the violence that was

inflicted on them and their families.

The Petitioner no. 1 and 2 realized that it was impossible for the

trustees themselves to meet individual victims and it was important to find

a reliable person in Ahmedabad to be available to victims whenever they

needed help. It was in this context that the Petitioner no. 1 employed

Shri.Rais Khan who used to live in Mumbai and relocated to Ahmedabad

and had been found to be reliable and committed to the cause of human

rights.

That accordingly, the Petitioner formally engaged Sh.Rais Khan by

paying a modest salary of Rs.7,000/-. Mr.Khan was advised to be

available for the victims and introduce them to lawyers and introduce them

to trial court lawyers as and when they needed the same. He was also

advised to inform the victims about the cases in this Honble Court and

their status and explain the implication of the orders passed by this

Honble Court.

That the Petitioner had found Mr.Khan to be reasonably

trustworthy. It is because of this belief that the Petitioner entrusted the

work to him and also believed that he was receiving threats to his life and

accordingly an application was filed seeking protection for him before this

Honble Court. On the said application for the Petitioners this Honble

Court was pleased to order protection from the Central Industrial Security

Force for Mr. Khan.

That sometime in late 2007, the Petitioner started receiving

complaints that Mr.Khan was not behaving properly with the victims and

was in fact mistreating them and even threatening them. It was also found

out that he was receiving patronage from some active members of the

VHP and also some of the powerful accused in the carnage cases. When

these complaints become persistent, the Petitioner decided that it was

dangerous to keep his association as all the hard work of the Petitioner

would be destroyed and their credibility would be affected. Accordingly it

was decided that it is best to discontinue with his services and public

notices given in that regard. By that time Mr. Khan was being paid

Rs.18,000/- per month as salary. When his services were discontinued,

the petitioner organization informed authorities/police

stations/administrators in Gujarat, Maharashtra and the Centre that the

association with Rais Khan has been discontinued. An advertisement was

also placed in a prominent Gujrati daily to make this public.

It is submitted that the Petitioners are fighting a battle against a

vindictive administration. Since the Petitioner no.1 organization is the only

consistent organization working towards accessing justice to the victims of

the communal riots, they have been targeted and a vicious attack is made

against the Secretary of the petitioner No.1 ie. the Petitioner no. 2. It has

also been the experience of the Petitioners that all the victims/witnesses

may not have the same conviction and courage to fight the administration.

On some occasions the victims may get threatened or induced to speak in

favour of the accused and the Petitioner no. 1 organization has suffered

this in the hands of Ms. Zahira Sheikh and her family members and finally

stood vindicated on an enquiry ordered by this Honble Court.

In relation to the communal carnage of 2002 which engulfed the

state of Gujarat, this Honble Court had appointed a Special Investigation

Team following the petition of the National Human Rights Commission

being Writ Petition (Crl.) 109 of 2003 and others. This Honble Court

thereafter directed that a set of trials be conducted by appointing special

judges and the investigating agency will be the Special Investigation Team

appointed by this Honble Court.

In one of the trials, which are subject matter of the orders of this

Honble Court, more popularly known as the Naroda Gaam trials, towards

the fag end of the trial, an application was filed by a disgruntled ex-

employee of the petitioner no. 1, Raiz Khan Aziz Khan Pathan leveling

certain allegations against the petitioner no. 2 and others that false

affidavits were prepared in the year 2002-2003. In the said application

under section 311 of Code of Criminal Procedure the prayer which was

made is as under:

a) with a view to bring truth on record I may be examined as a

prosecution witness and if, the prosecution is not inclined to

examine me, then in the interest of justice, I humbly pray that this

Honble Court may examine me as a court witness under section

311 of the Cr.P.C., to prove that Mr. Nanumiya, Madina Banu and

Imran Pathan had falsely implicated me and lied before this Honble

Court and I am an important link which can throw light on how the

victims were tutored, cheated and made to sign false affidavits by

Ms. Teesta Setalvad in the name of Interest of the Community

and no innocent is punished or prosecuted on the basis of false

testimony;

In this connection it is pertinent to also point out the timing of the

allegations and their genesis. One year and nine months after being

discontinued from service with the petitioner organization and after serious

lacunae in re-investigation and further investigation by the Supreme Court

appointed Special Investigation Team (SIT) had been pointed out and

sought to be corrected (from October 2009 to May 2010), this systematic

campaign that had been first launched by the state of Gujarat was

thereafter furthered through the spate of allegations and complaints made

by Rais Khan a former disgruntled employee. These allegations were

prominently displayed and carried in the Pioneer newspaper edited by a

member of parliament belonging to the same political party that has been

under scanner for the violence of 2002.

The learned Sessions Judge decided the application and gave a

finding that how the affidavits were prepared is not a point in issue in the

trial and also there is a doubt about the bonafide of the applicant i.e. Rais

Khan Pathan moving the application at the fag end of the trial. . The court

particularly questions why the application was moved only in the year

2010 when the allegations is that the false affidavit was prepared in the

year 2002-2003. The court further comes to a conclusion that there is

some hidden agenda either to settle scores with his previous employer or

to help the accused persons. However despite having come to the

conclusion that the application was motivated the Sessions Court ordered

that the Registrar, City Civil & Sessions Court makes a complaint in writing

before a competent court having jurisdiction. However, despite having

come to the conclusion that the application was motivated, the sessions

court ordered that the Registrar, City Civil and Sessions Court makes a

complaint in writing before a competent court having jurisdiction.

The Registrar City Civil and Sessions Court Ahmedabad filed the

complaint as directed before the Metropolitan Magistrate, Ahemdabad and

the Metropolitan Magistrate ordered that the complaint be sent for

investigation to the Assistant Commissioner of Police, Navrangpura Police

station for investigation and subject a report within 30 days.

This order of the Learned Magistrate was challenged before the

Honble High Court by the Registrar, City Civil and Sessions Court on the

ground that there is no need for investigation once the Sessions Court has

prima facie found that there is an offence made out in Criminal Misc.

Application No. 1692 of 2011.

The said Criminal Misc. Application was decided by the Honble

High Court of Gujarat by its judgement and order dated 11.7.2011 wherein

the judgement and order of the learned Magistrate was affirmed with a

modification that the investigation as directed by the learned Magistrate

would be against the unnamed accused persons and the finding of the

learned Sessions Judge qua Rais Khan Aziz Khan Pathan shall remain

and he shall face trial.

It is pertinent to mention that the application moved by Shri Khan is

not the only application filed by Shri Khan. There are a series of similar

complaints and applications which were moved by Shri Khan in various

courts and before authorities which clearly understates the ulterior motive

of Shri Khan and the people who are behind him. From September 2010

until now, first before the Special Investigation Team (SIT) appointed by

this Honble Court, then before the Commissioner of Police and Crime

Branch Ahmedabad, thereafter in three of the Trial Courts hearing the

Trials and being monitored by this Honble Court, Raiskhan Pathan has

made such vexatious applications.

It is pertinent to note that the same allegations concerning the

affidavits of the same witnesses in the Naroda Gaam case were first made

before this Honble Court by the State of Gujarat in its Rejoinder Affidavit

(April 2010) and were responded to in detail by the Petitioner no.2,

The petitioners are therefore challenging the entire proceedings

which had emanated from a vexatious application which was filed a

disgruntled ex-employee and with an ulterior motive on the following

amongst other set of facts and circumstances which are set out herein

chronologically

27.2. 2002 The Godhra train incident happened and

communal riots broke out in the state of

Gujarat targeting the life and property of

the minority community.

28.2.202- 1.3.2002 After the ghastly Godhra Incident in

which the S-6 Coach of the Sabarmati

Express were burnt down, a systematic

attack on the minority community took

place took place all over the state of

Gujarat in all at 30 locations over 19

districts of the State which the

Petitioners have good reason to believe

was supported by the State

Government. .

February 2002 The Petitioner No.1 is an organization

which started as a response to the

carnage which took place in Gujarat

from 27th February, 2002 onwards. Its

main objective is to bridge the gap

between the various religious

communities as also to ensure that

justice is done to those who are the

victims of communalism. Towards this

end it is involved in various activities

including relief and rehabilitation, public

advocacy on the issue of communalism.

It had set up a Concerned Citizens

Tribunal to go into the causes and

extent of communal violence in Gujarat

headed by 2 retired judges of this

Honble Court. The Report of this

Tribunal is published in two volumes.

The Founder members of Petitioner

No.1 included eminent personalities

such as the late renowned

Maharashtrian playwright, Vijay

Tendulkar, Alyque Padamsee, Javed

Akhtar, Anil Dharkar, Cyrus Guzder, and

others.

March-July 2002 Report of the National Human Rights

Commission headed by former Chief

Justice of India, Justice JS Verma

recommending transfer of major cases

for investigation to CBI.

May 2002 The First batch of Petitions filed in

Supreme Court praying for transfer of

cases to CBI.

2002-03 A series of further petitions, including a

petition by the National Human Rights

Commission were filed in this Honble

Court especially with respect to the

faulty and biased investigation in the

cases of communal carnage, including

this incident as also the manner in which

the trials were being conducted. The

National Human Rights Commission

also filed Transfer Petition (Crl) No. 194-

202 of 2003. This Honble Court was

pleased to stay the trials in 11cases of

riots including the present case prima

facie finding that the investigation was

faulty and biased and the trial was not

being conducted properly.

June 2002-November 2003 Series of Acquittals in Major cases

including the Best Bakery Case and

Pandharwada Massacre.

12.4.2004 This Honble Court while setting aside

the judgement and order of the High

Court of Gujarat confirming the order of

acquittal by the trial court, transferred

the trial of the Best Bakery incident to

Mumbai, Maharashtra.

November 3, 2004 During the pendency of the trial of Best

bakery in Mumbai, Star Witness Zahira

Sheikh

holds a press conference in Vadodara

and hurls malafide allegations against

the Petitioner organization and Its

Secretary.

November 2004 Petitioner Organisation and Its

Secretary file an application before this

Honble Court praying for an

investigation into the manner in which

Ms.Sheikh changed her stand.

August 2005 The Honble Registrar General submits

a report exonerating the Petitioner

Organisation and Its Secretary and

indicting Ms Zahira Shaikh for having

accepted inducements allegedly from

BJP MLA Madhu Srivastava.

18.1.2008 Mr. Raees Khan Azeezkhan Pathan was

one of the employees of the petitioner

no. 1 but because of his uncalled for

conduct towards the victims of the riots

for which the petitioners were working

for his services with the petitioner no.

1s organization was discontinued.

Therefore, Mr. Raees Khan Azeezkhan

Pathan was no more involved in any

work of the petitioner no.1. The

Secretary of the petitioner No.1

organisation has also addressed letters

to concerned official of the State as well

as the Central Government bringing to

their notice the fact that the services of

Mr. Raees Khan Azeezkhan Pathan with

the petitioner no.1 has been

discontinued and the security provided

to him as the field coordinator be

accordingly discontinued.

26.3.2008 This Honble Court in W.P. (Crl) No. 109

of 2003 and other connected matters

appointed a Special investigation Team

to give a report on the 11 trials which

were stayed by this Honble Court. The

SIT was to record the statements of

people who come forward to make

statements before it but it was made

very clear that the SIT shall not be

satisfied with only recording statements

of persons who come to have their

statements recorded and is free to

investigate further.

The SIT submitted its report to this

Honble Court but the same was not

made available to any other party

except for the Learned Amicus

appearing in the matter and to the State

of Gujarat.

27.4.2009 SIT is also asked to probe allegations

against the Chief minister of the State of

Gujarat and 61 others in SLP (crl) No.

1088/2008 where the Petitioner no.1 is

also a petitioner.

1.5.2009 By a judgement and order this Honble

court directed that the SIT should file

supplementary charge sheets in all the

cases and thereafter the trials had to

commence in Special Courts on a day to

day basis. It was directed that

considering the nature and sensitivity of

these nominated cases, and the history

of the entire litigation, that a senior

judicial officer be appointed so that

these trials can be concluded as soon

as possible and in the most satisfactory

manner. It was also directed that in

order to ensure that all concerned have

the highest degree of confidence in the

system being put in place, it would be

advisable if the Chief Justice of the High

Court of Gujarat selects the judicial

officers to be so nominated.

2009 The Additional Sessions Judge, Court

No.5, Ahmedabad is conducting one of

the trials being Criminal Case

No.203/2009 in relation to an incident

of rioting which happened in Naroda

Gam and is popularly known as the

Naroda Gam Case.

October 2009- May 2010 Petitioner Organisation through Its

Secretary filed interventions and

applications before this Honble Court

pointing out serious lacunae in further

investigations conducted by the SIT,

asking for directions for its rec-

constitution. Some merits were found

in this application as SIT was re-

constituted.

April 2010 The affidavit in rejoinder filed by the

State of Gujarat before this Honble

Court in response to the applications for

the reconstitution of the SIT make, inter

alia, malafide and vicious allegations

against the Petitioners. Interestingly,

there is a striking similarity between the

submissions of the State and the

subsequent allegations made by Rais

Khan.

1.9. 2010 Raiskhan Azizkhan Pathan first files an

Application before the Special

Investigation Team (SIT) appointed by

this Honble Court making vile, baseless

and malafide allegations.

9.9. 2010 & 17.9.2010 Raiskhan Azizkhan Pathan thereafter

through a letter to the Commissioner of

Police, Ahmedabad, the Crime Branch,

Ahmedabad leveled allegations against

the petitioners and others, apparently to

safeguard the interest of the accused.

The police did not respond.

19.10.2010 An affidavit is filed by Raiskhan

Azizkhan Pathan before the Nanavati

Shah Mehta Commission to which the

Petitioner filed a rejoinder in response.

Permission to cross examine him was

denied to the Petitioners counsel.

28.10.2010 An application was moved by Raiskhan

Aziz Khan Pathan under section 311 of

the Code of Criminal Procedure before

the Special Court conducting the trial of

Naroda Gam (Criminal Case No.

203/2009) praying that he be examined

as a witness in the said case alleging

that he was privy to information about

how the affidavits of victims/witnesses in

the present case were prepared. The

said application was filed to take out a

grudge against the petitioners and with

an ulterior motive It is also submitted

that the application also seems to be

filed at the behest of persons who are

out to scuttle the trial and stop the

delivery of justice to the victims of the

communal riots.

1.11.2010 - 3.11.2010 Application under section 311 filed by

Raiskhan Azizkhan Pathan before the

Trial Court hearing the Gulberg Trial

dismissed suspecting his credibility.

30.11.2011 Application under Section 311 filed by

Raiskhan Azizkhan Pathan in the Trial

Court hearing the Sardarpura Trial in

Mehsana District not only dismissed by

the Ld. Judge but also issued a notice to

Raees Khan on why he should not be

prosecuted for attempting to mislead

the Honble Trial Court. (CLARIFIED)

3.12.2010 The trial court hearing the Naroda Gaam

trial rejected the application of the said

Rais Khan Aziz Khan Pathan, filed to be

a witness u/s 311 Cr.P.C., and implicate

the petitioners and others, as being

motivated. However, the Learned

Special Judge directed a complaint be

made by the Registrar of the City Civil

and Sessions Court Ahmedabad under

Sections 193, 194, 195, 196, 199 and

200 and other provisions of the Indian

Penal Code against Raiskhan Azizkhan

Pathan and other persons and send it to

the competent Court

10.1.2011 The Registrar City Civil and Sessions

Court filed a Private Complaint before

the Metropolitan Magistrate, Court

No.13, Ahmedabad. The learned

Metropolitan Magistrate, Court No.13,

Ahmadabad, directed Navrangpura

police station to investigate into the

same u/s 156(3) of the code. In the said

order it is also directed that the police

inspector, incharge of Navrangpura

police station shall accept the complaint

and forward the same to the Assistant

Police Commissioner, Division B,

Ahmedabad City for the purpose of

investigation and place the report of

investigation within a period of 30 days.

7.2.2011 The said order of the Learned

Metropolitan Magistrate was challenged

before the Honble High Court by the

Registrar of the City Civil and Sessions

Court Ahmedabad in the High Court of

Gujarat in Criminal Misc. Application No.

1692 of 2011 under section 482 of the

Cr.P.C..

11.7.2011 The Honble High Court by the

impugned judgement and order affirmed

the order of the learned Magistrate.

However the order of the learned

Magistrate was modified to the extent

that the prima finding against Rais Khan

Azizkhan Pathan stands and the

investigation be carried out against the

unnamed accused.

20.7.2011 The Special Leave Petition filed




(Arising out of the final order and judgment dated .7.2011 passed by the Honble High Court of Gujarat at Ahmedabad, in Special Criminal Application No. 378 of 2010)

IN THE MATTER OF:

POSITION OF THE PARTIES In the In the In this Trial Court High Court Court

1. Citizens for Justice and Peace Through its Secretary, Nirant Juhu Tara Road, Mumbai, Maharastra Not a party Not a party Petitioner no.1 2. Teesta Atul Setalvad Nirant Juhu Tara Road, Mumbai, Maharastra Not a party Not a party Petitioner no.2

V E R S U S

1. The Sate of Gujarat Through its Chief Secretary, Sachivalaya Building Gandhinagar, Gujarat Prosecution Respondent no. 1 Contesting Respondent No. 1

2. Smt. B.H. Somani

Registrar City Civil & Sessions Court (Designated Court) Old High Court Compound Navrangpura, Ahmedabad Complainant Petitioner Contesting Respondent No. 2

3. Rais Khan Aziz Khan Pathan A/28, Ajit Residency, Ajit Mill Compund, Rakhial, Ahmedabad-380023

, Complainant Respondent no. 2 Contesting Respondent No. 3

A PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

TO THE HONBLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH: -

1. That the Petitioner above named is filing the present petition seeking

special leave to appeal against the final order and judgment dated

11.7.2011 passed by the Honble High Court of Gujarat at Ahmedabad, in

Criminal Misc. Application No. 1692 of 2011, final judgement and order

dated 3.12.2010 passed by the Additional Sessions Judge, Court No. 5,

Ahmedabad and final judgement and order dated 10.1.2011 in Inquiry No.

2 of 2011 passed by the Metropolitan Magistrate at Ahmedabad. By the

said orders the courts have allowed a process of the State of Gujarat to

engage in vicious investigation against the Petiitioner.

2. That the brief facts of the case are as under:

a. The present petition is connected with the communal

carnage which swept the State of Gujarat in 2002 where life

and property of the minority community were specifically

targeted.

b. A series of petitions were filed in this Honble Court and with

respect to the faulty and biased investigation in the cases of

riots and also of the manner in which the trials were being

conducted. The National Human Rights Commission also

filed W.P. (Crl) No. 109 of 2003 and Transfer Petition (Crl)

No. 194-202 of 2003. This Honble Court was pleased to

stay the trials in 11 cases of riots including the present case

prima facie finding that the investigation was faulty and

biased and the trial was not being conducted properly.

c. That the Petitioner no. 1 organization was set up after the

carnage in Gujarat to provide assistance to the victims of the

communal riots. The Petitioner no. 2 is the secretary of the

Petitioner no. 1 and has been spearheading the fight to get

justice for the victims of the communal riots. In the process,

the Secretary of the Petitioner organization, Petitioner no. 2

had occasion to interact with various witnesses who were

narrating the violence that was inflicted on them and their

families.

d. The Petitioner no. 1 and 2 realized that it was impossible for

the trustees themselves to meet individual victims and it was

important to find a reliable person in Ahmedabad to be

available to victims whenever they needed help. It was in

this context that the Petitioner no. 1 employed Shri.Rais

Khan who used to live in Mumbai and relocated to

Ahmedabad and had been found to be reliable and

committed to the cause of human rights.

e. That accordingly, the Petitioner formally engaged Sh.Rais

Khan by paying a modest salary of Rs.7,000/-. Mr.Khan was

advised to be available for the victims and introduce them to

lawyers as and when they needed the same. He was also

advised to inform the victims about the cases in this Honble

Court and their status and explain the implication of the

orders passed by this Honble Court.

f. That at that time, the Petitioner had found Mr.Khan

completely reliable and hard working. It is because of this

belief that the Petitioner believed that he was receiving

threats to his life and accordingly an application was filed

seeking protection for him before this Honble Court. On the

said application for the Petitioners this Honble Court was

pleased to order protection from the Central Industrial

Security Force for Mr. Khan.

g. That sometime in 2007, the Petitioner started receiving

complaints that Mr.Khan was not behaving properly with the

victims and was in fact mistreating them and even

threatening them. It was also found out that he was receiving

patronage from some active members of the VHP and also

some of the powerful accused in the carnage cases. When

these complaints become persistent, the Petitioner decided

that it was dangerous to keep his association as all the hard

work of the Petitioner would be destroyed and their credibility

would be affected. Accordingly it was decided that it is best

to discontinue with his services and public notices given in

that regard. At that time Mr. Khan was being paid

Rs.18,000/- per month as salary. When his services were

discontinued, the petitioner organization informed

authorities/police stations/administrators in Gujarat,

Maharashtra and the Centre that the association with Rais

Khan has been discontinued. An advertisement was also

placed in a prominent Gujrati daily to make this public.

h. It is submitted that the Petitioners are fighting a battle

against a vindictive administration. Since the Petitioner no.1

organization is the only consistent organization working

towards accessing justice to the victims of the communal

riots, they have been targeted and a vicious attack is made

against the Secretary of the petitioner No.1 ie. the Petitioner

no. 2. It has also been the experience of the Petitioner that

all the victims/witnesses may not have the same conviction

and courage to fight the administration. On some occasions

the victims may get threatened or induced to speak in favour

of the accused and the Petitioner no. 1 organization has

suffered this in the hands of Ms.Zahira Sheikh and her family

members. However, the organization continues to work in

the area with the expectation that their consistent work and

the perseverance would help atleast some victims and

achieving the larger cause of justice against the violence.

i. This Honble Court in W.P.(Crl) No. 109 of 2003 and other

connected matters on 26.3.2008 appointed a Special

investigation Team (SIT) to give a report on the 11 trials

which were stayed by this Honble Court. The SIT was to

record the statements of people who come forward to make

statements before it but it was made very clear that the SIT

shall not be satisfied with only recording statements of

persons who come to have their statements recorded and is

free to investigate further.

j. By a judgement and order dated 1.5.2009 this Honble court

directed the SIT to file supplementary charge sheets in all

the cases and thereafter the trials had to commence in

Special Courts on a day to day basis. It was directed that

considering the nature and sensitivity of these nominated

cases, and the history of the entire litigation, that senior

judicial officers be appointed so that these trials can be

concluded as soon as possible and in the most satisfactory

manner. It was also directed that in order to ensure that all

concerned have the highest degree of confidence in the

system being put in place, it would be advisable if the Chief

Justice of the High Court of Gujarat selects the judicial

officers to be so nominated.

k. That it is submitted that there have been serious but

completely baseless and vicious allegations made against

the Petitioners by the State of Gujarat. The Petitioners

believe these allegations were primarily to ensure that she

stops supporting the victims and the victims would then be

unable to afford or access the legal services required to face

a large organized mob of criminals actively supported by the

ruling party in the State.

l. It is in this background that on 28.10.2010 Raiskhan Aziz

Khan Pathan moved an application under section 311 of the

Code of Criminal Procedure before the Special Court

conducting the trial of Naroda Gam (Criminal Case No.

203/2009) praying that he be examined as a witness in the

said case alleging that he was privy to information about how

the affidavits of victims/witnesses in the present case were

prepared. The said application was filed to take out a grudge

against the petitioners and with an ulterior motive. It is also

submitted that the application also seems to be filed at the

behest of persons who are out to scuttle the trial and stop

the delivery of justice to the victims of the communal riots.

The prayers made in the said application was as under:

a) with a view to bring truth on record I may be

examined as a prosecution witness and if, the prosecution is

not inclined to examine me, then in the interest of justice, I

humbly pray that this Honble Court may examine me as a

court witness under section 311 of the Cr.P.C., to prove that

Mr. Nanumiya, Madina Banu and Imran Pathan had falsely

implicated me and lied before this Honble Court and I am an

important link which can throw light on how the victims were

tutored, cheated and made to sign false affidavits by Ms.

Teesta Setalvad in the name of Interest of the Community

and no innocent is punished or prosecuted on the basis of

false testimony; A true copy of the application made by

Rais Khan Aziz Khan Pathan dated 28.10.2010 in Criminal

case No. 203 of 2009 is annexed hereto and is marked as

Annexure P-1.

m. There are a series of complaints and applications which

were moved by Shri Khan in various courts and before

authorities which clearly understates the ulterior motive of

Shri Khan and the people who are behind him. To

enumerate a few, details of some of the applications/

complaints filed by Shri Khan is as under:

1. Raiskhan Azizkhan Pathan first files an

Application before the Special Investigation Team

(SIT) appointed by this Honble Court making vile,

baseless and malafide allegations. (1.9. 2010);

The SIT did not initiate any action on the basis of

this application apparently because it was filed to

damage the case of the prosecution. Thus, no FIR

was registered pursuant to such an application.

2. Through a letter to the Commissioner of Police,

Ahmedabad, the Crime Branch, Ahmedabad (9.9.

2010 &17.9.2010); The police commissioner too

did not find the application trustworthy and

therefore no action was taken initially.

3. Affidavit Filed by Raiskhan Azizkhan Pathan

before the Nanavati Shah Mehta Commission.

(19.10.2010);

4. An application was moved by Raiskhan Aziz Khan

Pathan under section 311 of the Code of Criminal

Procedure before the Special Court conducting the

trial of Naroda Gam (Criminal Case No. 203/2009)

praying that he be examined as a witness in the

said case alleging that he was privy to information

about how the affidavits of victims/witnesses in the

present case were prepared. (28.10.2010);

5. Application under section 311 filed by Raiskhan

Azizkhan Pathan before the Trial Court hearing

the Gulberg Trial; The Ld. Trial Judge had already

examined all the eye witnesses and apparently the

application of Raeeskhan was found to lack

credibility and hence the application was rejected.

6. Application under Section 311 filed by Raiskhan

Azizkhan Pathan in the Trial Court hearing the

Sardarp[ura Trial in Mehsana District;

(30.11.2011) The Ld. Trial Judge had

examined all the eye witnesses and at the fag end

of the trial, the frivolous application filed by Raees

Khan was not only dismissed but the Ld. Judge

had issued notice to Raees Khan on why he

should not br prosecuted. (CLARIFIED--- needs

clartity.What do you mean contemplating?)

n. The learned Sessions Court by a detailed

judgement and order on 3.12.2010 rejected

the application of the said Rais Khan Aziz

Khan Pathan. The learned Sessions Judge

gave a finding that how the affidavits were

prepared is not a point in issue in the trial

and also there is a doubt about the

bonafide of the applicant i.e. Rais Khan

Pathan moving the application at the fag

end of the trial. The court particularly

questions why the application was moved

only in the year 2010 when the allegations

is that the false affidavit was prepared in

the year 2002-2003. The court further

comes to a conclusion that there is some

hidden agenda either to settle scores with

his previous employer or to help the

accused persons. However, despite having

come to the conclusion that the application

was motivated, the Learned Special Judge

directed a complaint be made by the

Registrar of the City Civil and Sessions

Court Ahmedabad under Sections 193,

194, 195, 196, 199 and 200 and other

provisions of the Indian Penal Code against

Raiskhan Azizkhan Pathan and other

persons and send it to the competent Court.

(Impugned judgement and order).

n. The Registrar City Civil and Sessions Court filed a Private

Complaint before the Metropolitan Magistrate, Court No.13,

Ahmedabad. The learned Metropolitan Magistrate, Court

No.13, Ahmedabad, on 10.1.2011 passed an order in the

Complaint filed by the Registrar and directed the

Navrangpura police station to investigate into the same u/s

156(3) of the code. In the said order it is also directed that

the police inspector, incharge of Navrangpura police station

shall accept the complaint and forward the same to the

Assistant Police Commissioner, Division B, Ahmedabad City

for the purpose of investigation and place the report of

investigation within a period of 30 days. The same was done

sans the procedure which is laid down in the Criminal

Procedure Code. (Impugned order)

o. The said order of the Learned Metropolitan Magistrate was

challenged before the Honble High Court by the Registrar of

the City Civil and Sessions Court Ahmedbad in the High

Court of Gujarat in Criminal Misc. Application No. 1692 of

2011 under section 482 of the Cr.P.C..

p. The Honble High Court by the impugned judgement and

order affirmed the order of the learned Magistrate but

modified the order of the learned Magistrate to the extent

that the prima finding against Rais Khan Azizkhan Pathan

stands and the investigation be carried out against the

unnamed accused.

GROUNDS

3. Aggrieved by the said final order and judgment of the sessions court,

order of the learned Magistrate and the final judgement and order of the

Honble High Court, the Petitioners are filing the present Special Leave

Petition on the following amongst other grounds which are set out without

prejudice to each other.

A. Because it is apparent on the face of the entire proceedings that

the attempt has been to discredit and petitioners and dissuade them from

assisting the victims of the communal riots from getting justice.

B. Because the courts have failed to appreciate that there has been a

concerted effort to corner and the petitioners, more particularly

the petitioner no. 2;

C. Because Rais Khan Aziz Khan Pathan is not the only hand behind

all the campaigns against the petitioners. There have been other false

allegations and concoctions against the petitioners and more particularly

the petitioner no. 2;

D. Because the Courts below have failed to appreciate the attempt

and effort to target a group which is supporting victims of a carnage in a

concerted manner to ensure that these victims get justice;

E. Because the learned sessions judge rightly concluded that the application

was motivated and filed with a purpose of seeking a vendetta against the

Petitioner but despite having come to that conclusion ordered that a

complaint be filed thereby giving an already vindictive State machinery an

opportunity to harass the Petitioners;

F. Because the courts below failed to appreciate that similar allegations were

made against the Petitioner by Zahira Shaikh and after a thorough inquiry,

the allegations were found to be incorrect;

G. Because the learned sessions judge has rightly given a finding that a

finding that there is a doubt about the bonafide of the applicant i.e. Rais

Khan Pathan moving the application at the fag end of the trial. The court

particularly questions why the application was moved only in the year

2010 when the allegations is that the false affidavit was prepared in the

year 2002-2003. The court further comes to a conclusion that there is

some hidden agenda either to settle scores with his previous employer or

to help the accused persons.

H. Because the learned Public prosecutor in the Naroda Gaam trial had

objected to the application of Rais Khan and submitted that the whole act

of Shri Khan will jeopardize the entire trial.

I. Because the courts below failed to appreciate that Shri.Khan was filing the

applications at every forum and his intention was to somehow get an

adverse order passed against the Petitioner by some means;

J. Because neither the Petitioner nor its Secretary were heard before

the Honble Gujarat High Court before the Impugned Order was passed

K. Because the Special Investigation Team (SIT) appointed by this

Honble Court too was not heard before the Honble Gujarat High Court

before the impugned Order was passed.

L. Because the courts below failed to appreciate that even otherwise the

order of the Ld. Magistrate dtd. 10.01.2011 is illegal and against the

provisions of the law in as much as the Ld. Magistrate had no jurisdiction

to order investigation to Assistant Police Commissioner, Sector B,

Ahmedabad City. The Ld Magistrate could have at the best ordered

investigation to a police officer in charge of the concerned police station.

M. Because the directions issued upon the application of the respondent no. 3

herein will give an opportunity to the powerful accused to make a last

effort at damaging the case of the prosecution and thereby secure

acquittal by tampering with the witnesses.

4. That the petitioner has not filed any other petition before this Honble

Court before any other court against the impugned order in the present

petition and seeking similar relief.

5. That the annexures filed with the present petition formed part of the

records of the courts below and are their respective true translated copies.

PRAYER

The Petitioner Most Respectfully prays that this Honble Court may graciously be

pleased to:

a) grant special leave to appeal against the final order and judgment dated

11.7.2011 passed by the Honble High Court of Gujarat at Ahmedabad, in

Criminal Misc. Applciation No. 1692 of 2011; final judgement and order

dated 3.12.2010 passed by the Additional Sessions Judge, Court No. 5,

Ahmedabad and final judgement and order dated 10.1.2011 in Inquiry No.

2 of 2011 passed by the Metropolitan Magistrate at Ahmedabad

b) pass such other order/s as this Honble Court may deem fit and proper in

the facts and circumstances of the case and in the interest of justice

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

Filed by:

(Aparna Bhat) Advocate of the Petitioner

New Delhi Drawn on: Filed on:




(Arising out of the final order and judgment dated .7.2011 passed by the Honble High Court of Gujarat at Ahmedabad, in )

IN THE MATTER OF:


VERSUS


CERTIFICATE

Certified that the Special Leave Petition is confined only to the pleadings before

the Court whose order is challenged and the documents relied upon in those

documents. No additional facts, documents or grounds have been taken or relied

upon in this Special Leave Petition. It is further certified that copies of the

documents/annexures attached to the Special Leave Petition are necessary to

answer the question of law raised in the petition or to make the grounds urged in

the Special Leave Petition for the consideration of this Honble Court. This

certificate is given on the basis of instructions given by the Petitioner/person

authorized by the Petitioner whose affidavit is filed in support of the SLP.

(Aparna Bhat) Counsel for the Petitioners

Filed on: New Delhi



Crl.M.P. No. of 2011

IN


IN THE MATTER OF:


VERSUS


AN APPLICATION FOR PERMISSION FOR FILING THE SPECIAL LEAVE PETITION TO:

THE HON'BLE THE CHIEF JUSTICE AND HIS OTHER COMPANION JUSTICES OF THE HON'BLE SUPREME COURT OF INDIA:

THE HUMBLE PETITION OF THE

PETITONERS ABOVENAMED MOST RESPECTFULLY SHOWETH:

1. The Petitioners are filing the above Special Leave Petition under

Article 136 of the Constitution of India being aggrieved by the final

order and judgment dated 11.7.2011 passed by the Honble High Court

of Gujarat at Ahmedabad, in Criminal Misc. Application No. 1692 of

2011; final judgement and order dated 3.12.2010 passed by the

Additional Sessions Judge, Court No. 5, Ahmedabad and final

judgement and order dated 10.1.2011 in Inquiry No. 2 of 2011 passed

by the Metropolitan Magistrate at Ahmedabad. By the said orders the

courts have directed investigation against the petitioner and others on

a false and concocted allegation. The facts and circumstances leading

to the filing of the present petition are not repeated herein for the sake

of brevity and the petitioners seeks to refer to and rely upon the same

at the time of hearing the present application. The Petitioner

Organisation was not heard before the Honble Gujarat High Court.

2. The Petitioner No.1 is an organization, which started as a response to

the carnage, which took place in Gujarat from 27th February 2002

onwards. Its main objective is to bridge the gap between the various

religious communities as also to ensure that justice is done to those

who are the victims of communalism. Towards this end it is involved in

various activities including relief and rehabilitation, public advocacy on

the issue of communalism. It had set up a citizens tribunal to go into

the causes and extent of communal violence in Gujarat headed by 2

retired supreme court judges. The Report of this Tribunal is published

in two volumes.

3. The active members of Petitioner No.1 include eminent personalities

such as Vijay Tendulkar, Alyque Padamsee, Javed Akhtar, Anil

Dharkar, Cyrus Guzder and others. Petitioner No.2 is the Secretary of

Petitioner No.1 and is a journalist by profession. She has been closely

associated with the events in Gujarat since the beginning of the

carnage. Petitioner No.3 is Zahira Sheikh, who is one of the main eye-

witnesses who was forced to turn hostile in the Court. Petitioner No.3

and her family have been threatened and intimidated by Respondents

23 and 24 and forced them to turn hostile leading to the acquittals are

the persons.

4. The petitioners have been actively involved in proceedings before this

Honble Court and this Honble Court on the petitions and applications

of the petitioners were pleased to pass various orders.

5. The petitioners are now the target of concerted effort of people with

vested interest to sabotage the efforts of the petitioners to help the

victims of the communal riots. The orders under challenge in the

present petition would directly affect the petitioners herein and is

therefore craves permission of this Honble Court to file the present

SLP.

6. That the application is bonafide and made in the interest of justice.

PRAYER:

In the facts and circumstances stated herein above it is Most Respectfully

prayed that this Honble Court may be pleased to:

a) permit the petitioners herein to file the Special Leave to appeal

against the final order and judgment dated 11.7.2011 passed by the

Honble High Court of Gujarat at Ahmedabad, in Criminal Misc.

Application No. 1692 of 2011; final judgement and order dated

3.12.2010 passed by the Additional Sessions Judge, Court No. 5,

Ahmedabad and final judgement and order dated 10.1.2011 in

Inquiry No. 2 of 2011 passed by the Metropolitan Magistrate at

Ahmedabad.;

b) pass any such further or other order(s) as this Honble Court may

deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE APPLICANT/PETITIONER AS IN DUTY BOUND SHALL EVER PRAY

Filed by:

APARNA BHAT

COUNSEL FOR THE PETITIONERS DATED:



Crl.M.P. No. of 2011

IN


IN THE MATTER OF:


VERSUS


AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE SPECIAL LEAVE PETITION TO:

THE HON'BLE THE CHIEF JUSTICE

AND HIS OTHER COMPANION JUSTICES OF

THE HON'BLE SUPREME COURT OF INDIA:

THE HUMBLE PETITION OF THE

PETITONERS ABOVENAMED

MOST RESPECTFULLY SHOWETH:

1. The Petitioners are filing the above Special Leave Petition under Article

136 of the Constitution of India being aggrieved by the final order and

judgment dated 11.7.2011 passed by the Honble High Court of Gujarat at

Ahmedabad, in Criminal Misc. Application No. 1692 of 2011; final

judgement and order dated 3.12.2010 passed by the Additional Sessions

Judge, Court No. 5, Ahmedabad and final judgement and order dated

10.1.2011 in Inquiry No. 2 of 2011 passed by the Metropolitan Magistrate

at Ahmedabad. By the said orders the courts have directed investigation

against the petitioner and others on a false and concocted allegation. The

facts and circumstances leading to the filing of the present petition are not

repeated herein for the sake of brevity and the petitioners seeks to refer to

and rely upon the same at the time of hearing the present application. The

Petitioner was not heard before the Honble Gujarat High Court.

2. That it is most respectfully submitted that the petitioner was not a party

before the Sessions Court, the Magistrates Court or the Honble High

Court.

3. That the petitioner herein made enquiries from several sources and the

petitioners came to know of the proceedings of the courts. The petitioners

being the affected parties are therefore filing the present SLP. But by the

time the petitioner came to know of the same the limitation for filing a

Special Leave Petition before this Honble Ocurt against the order of the

learned Sessions judge and the learned Magistrate were over .

4. That the petitioner prefers this petition before this Honble Court so that

there is no miscarriage of justice.

5. That it is Most Respectfully submitted that the delay deserves to be

decided on merits since it involves

6. That it is Most Respectfully submitted that the delay in filing the Special

Leave petition has occurred due to bonafide reasons and despite the

exercise of due diligence by the petitioner/Applicant herein.

7. That this application is bonafide and made in the interest of justice.

PRAYER:

In the facts and circumstances stated hereinabove it is Most Respectfully

prayed that this Honble Court may be pleased to:

a) condone the delay of days in filing the Special Leave petition

against the final judgement and order dated 3.12.2010 passed by

the Additional Sessions Judge, Court No. 5, Ahmedabad and

condone the delay of days in filing the SLP against the final

judgement and order dated 10.1.2011 in Inquiry No. 2 of 2011

passed by the Metropolitan Magistrate at Ahmedabad;

b. pass any such other or further order(s) as this Honble Court may

deem fit and proper in the facts and circumstances stated herein

above.

AND FOR THIS ACT OF KINDNESS THE APPLICANTS/PETITIONERS AS IN

DUTY BOUND SHALL EVER PRAY

Filed by

APARNA BHAT

COUNSEL FOR THE PETITIONERS

DATED:

supreme court order and special leave petition

Documents